Opinion
November 10, 1986
Appeal from the Supreme Court, Monroe County, Provenzano, J.
Present — Dillon, P.J., Green, Pine, Balio and Lawton, JJ.
Judgment insofar as appealed from unanimously modified on the law and facts and as modified affirmed without costs, in accordance with the following memorandum: In reaching its conclusion that the undistributed liquid marital assets amounted to $12,606.04, the court failed to include $500, which was the uncontroverted sum in plaintiff's checking accounts, and failed to credit defendant with $2,893.79, the sum the court correctly determined to be defendant's separate property. The total assets figure should have been $10,212.25, and defendant's 35% interest therein $3,574.29. Since defendant was in possession of $3,371.93 of the undistributed funds, the court should have made a distributive award to defendant in the sum of $202.36, rather than the award of $1,853.61 to plaintiff, and we modify the judgment accordingly.
The court's award of 65% of the undivided marital assets to the husband and 35% to the wife is amply supported by the record. This was a childless marriage of some 10 years' duration. The husband's earnings comprised about 81% of the family income. Each party made significant nonmonetary contributions toward maintenance of marital property and their horse business and each is capable of financial self-support. The court also directed that the husband be responsible for 65% of the marital debts. There is no general requirement that assets be divided equally (Arvantides v Arvantides, 64 N.Y.2d 1033) and we conclude that the court properly exercised its discretion in this case (see, Kobylack v Kobylack, 62 N.Y.2d 399, on remand 111 A.D.2d 221; Michalek v Michalek, 114 A.D.2d 655). While the court's consideration of a posttrial ex parte written communication was clearly improper (see, Code of Professional Responsibility, DR 7-110; Code of Judicial Conduct, Canon 3 [A] [4]; Antoci v Antoci, 113 A.D.2d 857), it is apparent from the court's written decision that it did not consider defendant's alleged conduct in arriving at its determination of the respective interests of the parties. Under the circumstances, a reversal is not required (see, B.G. Equip. Co. v American Ins. Co., 61 A.D.2d 247, affd 46 N.Y.2d 811).
We note that the court delayed in rendering its decision. Defendant has not shown any prejudice resulting from that delay, and a new trial is not warranted (see, Thayer v Blando, 40 A.D.2d 886; Allied Scrap Salvage Corp. v State of New York, 26 A.D.2d 880).